Vancouver Marriage Agreement Lawyers

BC Spousal Support and Family Property Appeals

It pays to hire our top rated experienced Vancouver marriage agreement lawyers when you are thinking about entering into, defending or attacking a marriage agreement .

Variation of Marriage Agreements: When the Unexpected Happens

Lorne MacLean QC, Vancouver marriage agreement lawyer of MacLean Law, know that when things unfold differently than spouses thought they might, disputes around marriage agreements can arise. If a couple did not intend to have children at the time of signing, for example, and one spouse delays their career or their ability to build assets, a dispute can arise. Similar situations have occurred in numerous cases our Vancouver marriage agreement lawyers have handled or are handling.

Hire The Top Rated Vancouver Marriage Agreement Lawyers of MacLean Law

Our Vancouver marriage agreement lawyers are multiple winners of Vancouver’s Top Choice Award for Family Law and lead by one of BC’s top lawyers. You can meet with us with full confidence that we will accurately assist you in preparing, defending or attacking cohabitation, prenuptial and marriage agreements and we will prepare a powerful argument to maximize your chances of success. Our toll-free number is 1-877-602-9900. We have offices in Vancouver, St. John, Kelowna and Surrey.

What Is The Legal Test For Setting Aside A Marriage Agreement signed before March 18, 2013?

Our Vancouver marriage agreement lawyers know it is very important to note that our new Family Law Act has likely increased the bar for a successful marriage agreements variation. The old test required a spouse to prove unfairness while the new act require a spouse to prove significant unfairness. Out of court resolutions under our new Family Law Act are encouraged including marriage agreements. But if you signed your agreement before March 18, 2013 the old test applies.

In Gatien v Avini, 2015 BCCA 383, a British Columbia Court of Appeal Vancouver marriage agreement lawyers case, the Court of Appeal upholds a British Columbia Supreme Court Judge’s decision to set aside a marriage agreement under the Family Relations Act because it was “unfair.” The legal test for unfairness comes from a Supreme Court of Canada case, Hartshorne v Hartshorne, 2004 SCC 22, which recognizes that the court’s default position should be to respect private bargains made between spouses, but that the court should intervene in where those agreements meet a two-stage test for unfairness.

Respect for Private Agreements, Unless “Unfair”

A case was brought for variation of a marriage agreement under the Family Relations Act. Although the Family Relations Act was replaced by the Family Law Act in March of 2013, the Family Relations Act will still apply to certain marriage agreement disputes if the contract was signed before March 18, 2013..

Our Vancouver marriage agreement lawyers handle numerous cases involving marriage agreements. Our lawyers act for spouses and ex-spouses to draft agreements and to dispute agreements.

[39]       The judge refused to set aside the marriage agreement on common law principles. He then turned to s. 65. After setting out the section, the judge referred to the applicable law:

[115]   The leading decision on the application of s. 65(1) of the FRA is Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII). A succinct summary of the proper approach to division of assets as explained in Hartshorne is set out at paras. 119‑121 of Hanan v. Anderson, 2014 BCSC 96 (CanLII):

In Hartshorne, the Supreme Court of Canada stated that fairness is the primary policy objective guiding the court’s role respecting the division of assets upon marriage breakdown. Fairness may be achieved by reviewing the presumptive division under the FRA or the marriage agreement, in light of the factors governing reapportionment (para. 8).

The majority accepted the proposition that courts should respect private agreements that parties make for the division of their property on the breakdown of their relationship, particularly if they negotiated the agreement with independent legal advice, but only so long as the agreements are fair (paras. 8, 9). The fact that such agreements lead to a different result than the statutory regime does not, by itself, constitute unfairness (para. 9). Fairness within the context of the regime also requires, however, that the agreement operate fairly at the time of distribution (para. 9). See also paras. 34‑36.

Fairness is determined in two stages. First, the court applies the agreement in order to determine what financial entitlements would be provided to each spouse under the agreement. In the second stage, the court applies the factors from s. 65 of the FRA to determine whether the contract operates unfairly (para. 47). In doing so, the court must consider the way in which the parties’ personal and financial circumstances evolved over the course of the relationship and determine whether the current circumstances were within the parties’ contemplation when the agreement was signed. If they were, the burden to establish unfairness is heavier. Where the agreement is found to operate unfairly, the court may then reapportion the family assets, again by reference to the factors in s. 65(1).

[40]       The judge concluded that, in the circumstances, he:

[119]   … should give due respect to the private arrangements made by spouses for the division of their property on the breakdown of their relationship subject to the analysis required by s. 65.

He continued:

[120]   As noted in Hartshorne at para. 43, when deciding whether an agreement operates unfairly, the essential question is “whether the circumstances of the parties at the time of separation were within the reasonable contemplation of the parties at the time the agreement was formed, and if so, whether at that time the parties made adequate arrangements in response to these anticipated circumstances.” This determination cannot be made without regard to the parties’ perspectives. The court in Hartshorne describes how this is to be approached at para. 44:

If the parties’ lives unfold in precisely the manner they had contemplated at the time of contract formation, then a finding that the contract operates unfairly at the time of distribution constitutes, in essence, a substitution of the parties’ notion of fairness with the court’s notion of fairness, providing that nothing else would suggest that the parties did not really consider the impact of their decision in a rational and comprehensive way. Thus, central to any analysis under s. 65(1) of the FRA is consideration of how accurately the parties predicted, at the time of contract formation, their actual circumstances at the time of distribution, whether they truly considered the impact of their decision and whether they adjusted their agreement during the marriage to meet the demands of a situation different from the one expected, either because the circumstances were different or simply because implications were inadequately addressed or proved to be unrealistic.

[41]       As noted previously, the judge held that at the time the marriage agreement was entered into, “the parties were operating under a shared assumption they would not have children”. He reviewed the financial positions of the parties, the wife’s financial expectations based on the parties not having children and the consequences of them doing so. The judge stated:

[133]   …The need of each spouse to remain or become economically independent or self-sufficient is the most significant factor in the analysis at this first stage. As I have explained, the difference in how the parties’ lives evolved dramatically impacted the [wife]. Her economic status has not developed in a way that was consistent with the intent of the Marriage Agreement: her ability to build a career and acquire assets has been delayed. The agreement has worked in a way which has been substantively unfair to her.

[134]   The unfairness is obvious and dramatic. The Marriage Agreement was premised on the concept that each party was and would remain financially independent and self-supporting. When they decided to have children, their lives unfolded very differently from what they anticipated. At the time of distribution, the [wife] was left with no personal assets, no share of the family assets, no interest in a matrimonial home, no income and no right to spousal support. In contrast, the [husband] retained all of his personal assets and all of the family assets. He was employed with a substantial income and has no obligation to pay spousal support. I have no difficulty in concluding that the Marriage Agreement operated unfairly at the time of distribution.

[42]       In my view, the judge clearly understood the applicable law and undertook a careful analysis based on it. I would not interfere with his conclusion that the marriage agreement was unfair.

Our top rated Vancouver marriage agreements lawyers are here to help you draft marriage agreements that will give you and your family stability, and dispute agreements which have become unfair. Remember, an agreement is part of the foundation that will help your family move forward with stability. A skilled lawyer can help draft an agreement that will set your family on the right course, and can help you decide whether to set aside or vary agreements which are significantly unfair. Hire our Vancouver marriage agreement lawyers early on.